MRR Legal Update: Second Circuit Court Decision ~ “Because of…Sex” Discrimination Protections for Sexual Orientation

By: Tami Z. Hannon

“Because of…sex.”  Three small words have garnered much spilled ink and legal opinions.  What is “sex?”  When is an employee discriminated against “because of” his or her sex?  Most importantly for this article, is an employee who is terminated due to his or her sexual orientation discriminated against “because of…sex?”

The support for sexual orientation as sex discrimination under Title VII is growing.  On February 26, 2018, the Second Circuit Court of Appeals became the second circuit to hold that discrimination due to sexual orientation is discrimination “because of…sex” as under Title VII.  This opinion joins the recent Seventh Circuit Court of Appeals opinion which likewise held that sexual orientation discrimination is prohibited by Title VII.  These opinions have established new law for New York, Vermont, Connecticut, Illinois, Indiana and Wisconsin, while leaving the remaining states in confusion over the scope of Title VII’s protections.

Title VII Background

Title VII of the Civil Rights Act of 1964 prohibited employers from discriminating against current and potential employees on the basis of several characteristics.  The issue at hand in recent rulings has been the prohibition against discrimination “because of…sex.”  Prior to 2015, the courts largely agreed that “sex” discrimination applied to biological gender, and gender stereotyping (i.e. beliefs on how a male or female should act).  Courts largely rejected the notion that “sex” included discrimination based on sexual orientation.

Evans v. Georgia Regional Hospital

In March of 2017, the Eleventh Circuit Court of Appeals was asked to determine whether sexual orientation discrimination violated Title VII.  The Eleventh Circuit held that it was bound by its prior decisions that sexual orientation was not protected under Title VII.  As such, it dismissed Ms. Evans’ complaint alleging that she was subjected to harassment and discrimination as a result of her sexual orientation.  Ms. Evans sought review by the U.S. Supreme Court; however, on December 11, 2017, the U.S. Supreme Court declined to hear the appeal.

Hively v. Ivy Tech

In April of 2017, the Seventh Circuit Court of Appeals held that discrimination “because of…sex” included sexual orientation discrimination.  In so ruling, the Seventh Circuit held that decisions based on sexual orientation are inherently based upon an individual’s gender as a female who enters into a romantic relationship with a male is treated differently than a male who enters into a romantic relationship with another male.  The only variable is the biological gender of the employee.  As such, the sole factor was biological gender, or sex.  This ruling was not appealed to the U.S. Supreme Court.

It was on this stage that Zarda v. Altitude Express was recently decided.

Zarda v. Altitude Express

Mr. Zarda was a tandem sky diving instructor for Altitude Express.  Mr. Zarda stated that he would occasionally reveal his sexual orientation to female clients as a way of making them feel more comfortable about being closely strapped to an unfamiliar male.  One of Mr. Zarda’s clients alleged that he touched her inappropriately and then revealed his sexual orientation as a way of excusing his conduct.  She told her boyfriend of this exchange.  Her boyfriend contacted Altitude Express to complain.  Mr. Zarda was subsequently terminated as a result of the complaint.  Mr. Zarda alleged that his termination was the sole result of his sexual orientation and his failure to conform to the stereotype of a “straight male.”

Under prior rulings in the Second Circuit, claims of gender stereotyping could not be based on sexual orientation nor was sexual orientation recognized as sex discrimination.  As such, Mr. Zarda’s complaint was initially rejected.  Mr. Zarda appealed the dismissal to the Second Circuit Court of Appeals, which upheld the dismissal.  He then requested, and was granted, an en banc hearing. An en banc hearing is held before all judges appointed to that Circuit and provides the process for a court to overrule its prior decisions.  The granting of such a hearing signals the potential for a significant departure from prior cases.

After the en banc hearing, the Second Circuit Court of Appeals issued a lengthy and disputed opinion holding that sexual orientation constitutes discrimination “because of…sex” as defined by Title VII.  The Court held that the purpose of Title VII was to make sex and those traits associated with sex irrelevant to employment decisions.  The Court recognized that sexual harassment claims were initially not considered discrimination as they were not based on being a female, but for refusing to submit to sexual requests.  However, courts soon drew the distinction that the employee was the target of the sexual advances because of her gender, making sexual harassment a form of gender discrimination.  Male-on-male harassment was also barred as being based on gender and as “a reasonably comparable evil” against which Title VII was designed to protect.  Based on those cases, the Second Circuit Court of Appeals held that sexual orientation discrimination was necessarily the result of the sex of the people involved in the relationship and ultimately a decision based on sex.  Accordingly, sexual orientation discrimination was found to be discrimination “because of…sex” in violation of Title VII.

The Second Circuit Court of Appeals also held that sexual orientation discrimination constituted associational discrimination.  Associational discrimination was originally recognized under Title VII largely to offer protection for interracial marriages.  It was held that, in those case, employees were subjected to discrimination based on their own race and the race of those with whom they associated as it was the perceived racial misalignment that was the motivation for the discrimination.  The Second Circuit Court of Appeals found that rational applied with equal force to sexual orientation discrimination as it punished an employee based on the sex of the individual with whom he or she intimately associated.  As it is widely accepted a female should not be fired for having male friends, the Court found a lesbian employee should be similarly protected for associating with females, rather than males.

Impact of Zarda v. Altitude Express

The Zarda decision was far from unanimous.  Only 7 of the 13 judges hearing the case agreed that sexual orientation discrimination constitutes discrimination “because of…sex.”  Eight of the 13 judges found it was associational discrimination.  The allegation that sexual orientation discrimination is a form of gender stereotyping was only accepted by 6 of the 13 judges.  This sharp division shows that Title VII’s coverage of sexual orientation is far from settled.

Under President Obama, the Equal Employment Opportunity Commission was active in advancing protections for sexual orientation.  Under President Trump, the Commission has taken a more conservative view.  Regardless, once positions and protections are established by the courts, it becomes more difficult to change them as courts are bound to follow their prior rulings and interpretations issued by their circuit.  Given this, ongoing and future litigation will be impacted by these rulings regardless of any policy decisions made by the governmental administration.

The Zarda, Evans and Hively decisions have created a split among the courts as to whether sexual orientation discrimination is covered under Title VII.  Employers will need to be aware of the coverage for their specific business locations.  As courts are beginning to consider and reverse prior case rulings, we are also likely to see claims of sexual orientation discrimination increase as individuals seek to clarify Title VII protections.

The U.S. Supreme Court recently declined to hear the Evans case as to whether Title VII includes protections for sexual orientation.  The decision not to hear that appeal was not explained, but could be the result of several factors including poorly developed legal analysis by the lower courts and allegations by the employer that it had never been served with the complaint.  As the split among the circuits grows, it will likely only be a matter of time before the Supreme Court agrees to decide the issue.

For  more information, contact Tami Z. Hannon at or 440.424.0009.

Potato, Potahto…Sexual Orientation as Sex Discrimination: A Review of Hively v. Ivy Tech Community College

By Tami Hannon

In recent years, the concept of “sex” discrimination under Title VII has been in the limelight.  Everyone agrees that discrimination based on “sex” is prohibited under the laws, but there has been much dissent over what is encompassed under the concept of “sex.”  Does sex discrimination cover appearance?  What about transgender status?  Does it cover sexual orientation?

Until recently, most courts agreed that “sex” was broader than just discrimination due to biological sex.  “Sex” was interpreted as encompassing sexual stereotyping and an employer’s perception of what behavior was appropriate for a male or female.  Despite this, the majority of courts resolutely held that concepts such as transgender and sexual orientation were not specifically protected under Title VII.  That perception is now shifting.

The 7th Circuit Court of Appeals recently held that discrimination based upon sexual orientation is a form of “sex” discrimination under Title VII.  In Hively v. Ivy Tech Community College, Ms. Hively was openly lesbian.  She was hired as a part-time professor in 2000.  Over the years, she applied for several full-time positions, but was never promoted.  In 2014, her part-time teaching contract was not renewed, resulting in her termination from the college.

Ms. Hively filed a discrimination charge with the Equal Employment Opportunity Commission alleging that the failure to promote her to a full-time position and the decision not to renew her contract was based on her sexual orientation.  The EEOC declined to pursue the case, and Ms. Hively filed a federal lawsuit under Title VII, alleging sexual discrimination.  The district court dismissed her case on the basis that sexual orientation was not a protected class under Title VII.

Ms. Hively appealed.  The three judge panel assigned to hear her case agreed that the district court had properly dismissed her case, though the panel believed the underlying law was in question given recent U.S. Supreme Court opinions.  Ms. Hively requested that the entire 11 judge panel of the 7th Circuit Court of Appeals review her case (what is known as an en banc hearing) and determine whether the underlying law was still valid.  The court accepted her petition and the entire 11 judge panel considered her claims.  The panel concluded that the past case law was no longer valid, and that sexual orientation is a form of “sex” discrimination under Title VII.

While the final outcome is a marked departure, the law used by the 7th Circuit in reaching this conclusion is not.  The court relied upon past U.S. Supreme Court cases prohibiting gender stereotyping and same sex harassment to find that Title VII applies to more than biological sex.  The Hively court also gave a nod to the recent U.S. Supreme Court case of Obergefell which recognized the constitutional right of same sex couples to marry.

The court held that beliefs as to with whom one should be intimate is the sine quo non of gender stereotypes.  The court further found that, under the allegations made by Ms. Hively, she would have received the promotions if she had been a man married to a woman.  As she did not receive the promotions because she was a female, the claim properly alleged sex discrimination.

Ms. Hively also alleged that she was discriminated against for associating with (i.e. marrying) a female.  Ms. Hively made her arguments under the now widely accepted case law that a person of one race cannot be discriminated against for marrying a person of another race.  The court found that discriminating against a woman who was married to a woman was no different than the laws prohibiting discrimination based on interracial marriages.  If the gender of one of the parties in the relationship was changed, so to would be the outcome.  The court found that was the very definition of discrimination based on gender.

The Hively case was decided by the 7th Circuit Court of Appeals, which does not have jurisdiction over Ohio.  Our own courts still hold that sexual orientation is not a separate protected class, though protection is granted to individuals who suffer discrimination if they do not conform to societal notions of “male” and “female.”  The opinion in Hively may signal a shift towards accepting sexual orientation as a protected class, which would likely also extend to transgender individuals under the more inclusive definition of gender stereotyping being applied.  Nevertheless, the Hively opinion was not unanimous, showing that there is still dispute as to whether sexual orientation is a form of sex discrimination.

The Hively case may find its way to the U.S. Supreme Court.  The sitting panel is largely the same as that which issued the opinion in Obergefell, such that Hively could find a friendly ear.  However, the Supreme Court has recently backed down from issuing opinions on what constitutes “sex” discrimination such that the Court may decline to hear the case.  Despite the unknowns one thing remains clear, “sex” discrimination under Title VII remains difficult to define.